Sheach & Sheach
[2024] FedCFamC1F 469
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sheach & Sheach [2024] FedCFamC1F 469
File number: SYC 9412 of 2023 Judgment of: CAMPTON J Date of judgment: 12 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was transferred from the Federal Circuit and Family Court of Australia (Division 2) to this Court for the purpose of consideration of placement in the Major Complex Financial Proceedings List – Where the parties have failed to comply with orders of this Court, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and their obligations as litigants pursuant to s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the parties have been delinquent in the conduct of the litigation including not being capable of identifying fundamental parts of each of their respective cases or issues of fact in the litigation – Where this Court will not accommodate or facilitate such failures – Where the matter is removed from the Major Complex Financial Proceedings List and is requested to be transferred back to the Federal Circuit and Family Court of Australia (Division 2) – Where the reason for the second transfer is grounded from spurious contentions made securing the first transfer, and from the subsequent reckless negligent conduct of the litigation in this Court. Legislation: Family Law Act 1975 (Cth) ss 79 and 80
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67 and 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, rr 1.04, 1.33, 10.27
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 12 July 2024 Place: Sydney Counsel for the Applicant: Ms Bromberger Solicitor for the Applicant: Branston Neville Solicitor for the Respondent: LCI Legal ORDERS
SYC 9412 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHEACH
Applicant
AND: MR SHEACH
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
1.The proceeding be removed from the Major Complex Financial Proceedings List.
2.The time for each of the husband and the wife to comply Order 4 made 22 April 2024 as to the filing of an undertaking as to disclosure, be extended to 5.00 pm on Monday 15 July 2024.
3.In the event a party fails or neglects to comply with Order 1, their Initiating Application or Response thereto will be struck out and the other party will have leave to proceed on an undefended basis.
4.The proceeding will be listed on a date to be fixed before a judicial registrar.
5.The proceeding is referred to the Chief Justice requesting consideration for the transfer of the proceeding to Division 2.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheach & Sheach has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), commenced by way of Initiating Application filed by Ms Sheach (“the wife”) in the Federal Circuit and Family Court of Australia (Division 2) on 10 December 2023. Mr Sheach (“the husband”) filed a Response to the Initiating Application on 8 February 2024 seeking different orders adjusting the property between the parties.
The parties married in 1995 and separated on 20 July 2023. They have three adult children. The husband has been self-employed as a director of a corporation, B Pty Ltd, for the past 24 years. I am told for the purposes of the listing today that the corporation undertakes a construction enterprise. His financial statement records his income from that corporation to be in the range of $150,000 per annum. The wife is not engaged in employment.
Competing interlocutory applications were listed for hearing before a senior judicial registrar in the Federal Circuit and Family Court of Australia (Division 2) on 16 April 2024. At that time, consent orders were made compromising interim periodic spouse maintenance, interim property settlement, injunctive orders for the preservation of property and the use of a motor vehicle, as to the exclusive occupation of the home of the parties at Suburb C, coupled with a notation as to the possible transfer of the proceeding to this Court and inclusion in the Major Complex Financial Proceedings list. It was promoted at that time that the property of the parties was valued in the range of $26 million.
Orders were made on 22 April 2024 transferring the proceedings from the Federal Circuit and Family Court of Australia (Division 2) to this Court and placing the matter in the Major Complex Financial Proceedings List.
It is self-evident upon reading the Initiating Application and Response thereto that the substantial portion of the relief sought by each party is incompetent, seeking orders that cannot be made by way of s 80 of the Act, and if they could be made, could not be enforced.
No joint collaborative balance sheet identifying the property of the parties and its respective contented values had been filed.
Having regard to each of the above matters, the following orders were made in chambers on 22 April 2024 as follows:
1.On or before 20 May 2024, the Applicant wife to file and serve any amended Initiating Application.
2.On or before 11 June 2024, the Respondent husband is to file and serve any amended Response to the Initiating Application.
3.On or before 14 June 2024, both parties are to file and serve an updated financial statement.
4.On before 14 June 2024 both parties are to file an undertaking as to disclosure in accordance with r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
5.On or before the 21 June 2024, the Applicant wife shall serve upon the Respondent husband a joint draft balance sheet to include all assets, liabilities, superannuation interest and financial resources as she understands to be suggested to be relevant and to include values as alleged by each party.
6.The Respondent husband shall on or before 28 June 2024 make any additions to the balance sheet as required to reflect his contra allegations and any values that are agreed (if applicable).
7.Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy.
8.A final, settled version of the joint balance sheet shall be filed and served on or before 5 July 2024.
The matter has been listed for case management today.
Not a single order as made on 22 April 2024 has been the subject of compliance.
On inquiry today, the wife contends the value of the property of the parties is in the range of $15 million. The husband contends it is in the range of $8 million. The practice direction records one criterion for a matter to be included in the Major Complex Financial Proceedings List being the value of the property of the parties being more than $20 million. The wife seeks an adjustment of that property in her favour as to 55 per cent. The husband seeks an adjustment of that property equally between the parties.
Exchanges at the hearing today reveal that the disclosure of documents and information pursuant to ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) has been problematic and may be inadequate. By way of his solicitor, the husband advised today that he has complied with his obligations of disclosure, whether by way of orders or directions of the Court, or by way the mandatory requirements of ch 6 of the Rules, such that he would be able to file an undertaking as to disclosure today. He has been cautioned as to the consequences of a failure to comply with that obligation.
The wife contends that the husband beneficially owns the issued shares in a trading corporation. The husband says the shares are legally and beneficially held by his brother. At the hearing today, the wife could not specify the foundations to ground her contention.
In the event parties are in default of orders or directions made, or fail to comply with them, consideration can be given by the Court, on its own motion, to stay or dismiss the whole or any part of the relief claimed by the party. Submissions have been sought by each party today to show cause why their initiating relief or response thereto ought not be struck out in the circumstances of their abject failure to comply with the both the identified orders and their obligations codified in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 1.04 of the Rules.
Both parties are in default of the orders made on 22 April 2024. No credible or cogent explanation is preferred for that failure. The wife prepared an affidavit today directed to that issue but has not served it on the husband.
The Court currently has no capacity to identify the issues in the proceedings, what factual matters are in dispute for the purposes of the litigation, or any of the relevant factors that would promote a determination of a just and equitable adjustment of property between the parties.
The orders, the legislation, and the Rules set out the expectations of the Court in the conduct of these proceedings. It is not for the parties to treat orders made to define the parameters of the litigation and to identify the factual matters agreed and those in dispute as guidelines or suggestions. That may well be acceptable for the pirate code, but it is not acceptable in this Court and, specifically, to matters in the Major Complex Financial Proceedings List. In that list, litigants and practitioners are required to directly engage with the fundamental integers of the property dispute. It is not an environment for the inefficient, the unprepared, or the inattentive. Practitioners who appear are expected to have an informed and intricate knowledge of the case to ensure the efficient use of court resources.
These parties have failed to engage with the directions that have been made to facilitate the just and efficient progression of this matter along a litigation pathway. The tailored specialised proactive judge management available in the Major Complex Financial Proceedings List will be terminated. An order will be made removing the proceedings from the Major Complex Financial Proceedings List.
The matter will be listed provisionally before a judicial registrar on a date to be fixed.
Request will be made to the Chief Justice for the removal of these proceedings by way of transfer from the Federal Circuit and Family Court of Australia (Division 1) to the Federal Circuit and Family Court of Australia (Division 2). The contentions made to the Registrar grounding the transfer from Division 2 to this Court by way of the value of the property of the parties and from the alleged complexity of the financial dispute were inaccurate, taking the matter outside the parameters of the relevant practice directions.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 July 2024
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